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Ethical Implications of Forensic Genealogy in Criminal Cases

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Ethical Implications of Forensic Genealogy in Criminal Cases The Journal of Business, Entrepreneurship & the Law Volume 13 Issue 2 Article 6 5-15-2020 Ethical Implications of Forensic Genealogy in Criminal Cases Solana Lund Follow this and additional works at: https://digitalcommons.pepperdine.edu/jbel Part of the Criminal Law Commons, Legal Ethics and Professional Responsibility Commons, Privacy Law Commons, and the Science and Technology Law Commons Recommended Citation Solana Lund, Ethical Implications of Forensic Genealogy in Criminal Cases, 13 J. Bus. Entrepreneurship & L. 185 (2020) Available at: https://digitalcommons.pepperdine.edu/jbel/vol13/iss2/6 This Comment is brought to you for free and open access by the Caruso School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in The Journal of Business, Entrepreneurship & the Law by an authorized editor of Pepperdine Digital Commons. For more information, please contact [email protected], [email protected], [email protected]. ETHICAL IMPLICATIONS OF FORENSIC GENEALOGY IN CRIMINAL CASES Solana Lund* I. FORENSIC GENEALOGY .................................................186 II. DIRECT TO CONSUMER DATABASES ..........................189 A. Terms and Conditions ......................................... 189 B. Regulations ......................................................... 192 C. GEDmatch........................................................... 193 III. A SUMMARY OF CRIMINAL CASES THAT HAVE USED DTC AND FORENSIC GENEALOGY ...............................195 IV. ETHICAL IMPLICATIONS AND CONCERNS ................196 A. Informed Consent ................................................ 197 B. Legal Issues ......................................................... 198 C. Privacy Concerns ................................................ 200 V. MOVING FORWARD .........................................................201 A. Informed Consumer Consent and Company Transparency ...................................................... 202 B. DNA Privacy Laws .............................................. 203 C. Case Selection Criteria ....................................... 206 CONCLUSION ............................................................................207 Growing up, I heard stories about my great grandpa James Stanton, the son of Irish immigrants who was orphaned at a young age. James grew up in New York in the early 1900s and eventually made his way to Utah, where he met and married my great grandma. James rarely spoke about his parents, and for the longest time the only thing he told us is that they were Irish. When he died in 1968, that was essentially all we knew about them. My mother tried repeatedly to find James’ parents and complete our family tree but continuously ran into dead ends. It was a family history “cold case” for most of my life. Then, last year, my mother caught a break in the case and discovered that my Irish orphan great grandpa James Stanton was actually my Polish runaway great grandpa Joseph Balkum. While the revelation that James Stanton was actually Joseph Balkum sent shockwaves through my family, it did not garner national attention like the apprehension of the Golden State Killer. The Golden State Killer terrorized central and southern California in the 1970s and 80s 186 BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XIII:II on a seemingly unstoppable criminal rampage.1 He is thought to be responsible for committing sixty home invasions, fifty rapes, and thirteen murders, making him one of America’s most prolific serial killers.2 While his crime spree ended in the 80s, the police never captured the Golden State Killer.3 The case remained unsolved until last year when police arrested Joseph James DeAngelo Jr. and charged him as the Golden State Killer.4 While it could be a few years before the trial even starts, prosecutors are confident that they have their man and say that they will seek the death penalty.5 While both mysteries were solved last year, on the surface they have very little in common. What does the discovery of a long-lost grandpa and the revelation of the identity of notorious serial killer have in common? Both cold cases were solved using forensic genealogy. I. FORENSIC GENEALOGY Forensic Genealogy is the process of using DNA matches to reverse engineer a family tree.6 A DNA sample is submitted to a DNA database (e.g., 23andMe or Ancestry.com), resulting in various matches. Using those matches, “[f]amily trees are developed for individuals as close or closer than third or fourth cousins, with an eye to where disparate branches of the family trees cross, indicating a family where both paternal and maternal lines combine in a single family.”7 While the DNA match is * J.D. Pepperdine University School of Law 2020 1 Paige St. John, et. al, Mapping the Golden State Killer, L.A. TIMES (June 11, 2019), https://www.latimes.com/projects/man-in-the-window-crime- map-golden-state-killer-serial/. 2 Id. 3 Breeana Hare & Christo Taoushiani, What we know about the Golden State Killer case, one year after a suspect was arrested, CNN, https://www.cnn.com/2019/04/24/us/golden-state-killer-one-year- later/index.html (last updated Apr. 24, 2019). 4 St. John, supra 1. 5 Id. 6 Colleen Fitzpatrick & Dee Dee King, Forensic Genealogy—Dead Men Do Tell Tales, RECORD CLICK PROFESSIONAL GENEALOGISTS, https://www.recordclick.com/forensic-genealogy-dead-men-do-tell-tales/ (last visited Mar. 9, 2020). 7 RAY A. WICKENHEISER, Forensic Genealogy, Bioethics and the Golden State Killer Case, 1 FORENSIC SCIENCE INTERNATIONAL: SYNERGY 114, 2020 ETHICAL IMPLICATIONS 187 the first step in forensic genealogy, there is more investigation that goes into it. After a match is found, investigators will use a variety of resources to complete the family tree. Common resources include “census records, vital records, newspaper archives, public ‘people search’ databases, public social media data, and public family trees.”8 If there are two potential DNA matches for a single sample, descendancy research is performed to trace the descendants of each set of ancestors to determine if an intersection between them can be found.9 When my mother uploaded her DNA to Ancestry, her DNA matched with a second cousin, a woman she never heard of before. My mother reached out to her and through her own forensic genealogy discovered the truth about Joseph Balkum, alias James Stanton. Joseph Balkum ran away from home when he was fifteen after a fight with his mother. He changed his name and took this secret to his grave. Without DNA testing, my family would likely have never learned the truth about our heritage. Similarly, the Golden State Killer’s DNA was uploaded to GEDmatch—a public DNA database—resulting in a match to a potential a distant relative.10 Investigators then used traditional genealogical research methods to reverse engineer a family tree, leading them to Joseph DeAngelo.11 Once they suspected DeAngelo, police obtained a sample of his DNA from his discarded trash and compared it to suspect DNA left at one of the Golden State Killer’s crime scenes, resulting in a match.12 After decades of searching, forensic genealogy provided a break in the Golden State Killer case. 118 (July 12, 2019), https://www.sciencedirect.com/science/article/pii/S2589871X19301342. 8 ELLEN M. GREYTAK, et al., Genetic Genealogy for Cold Cases and Active Investigations, 299 FORENSIC SCIENCE INTERNATIONAL 103, 106 (Mar. 27, 2019), https://www.sciencedirect.com/science/article/pii/S0379073819301264. 9 Id. 10 Jocelyn Kaiser, New federal rules limit police searches of family tree DNA databases, SCI. MAG. (Sept. 25, 2019), https://www.sciencemag.org/news/2019/09/new-federal-rules-limit-police- searches-family-tree-dna-databases. 11 Id. 12 Breeanna Hare & Christo Taoushiani, What we know about the Golden State Killer Case, one year after a suspect was arrested, CNN (Apr. 24, 2019), https://www.cnn.com/2019/04/24/us/golden-state-killer-one-year- later/index.html. 188 BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XIII:II While the use of DNA in criminal cases is nothing new, the increase in access to DNA analyses through Direct to Consumer genetic testing providers is changing the game. One study suggested that it is often possible to identify an unknown individual from a single third-cousin- level match given knowledge of his or her sex, location within 100 miles, and age within five years.13 Another report claims that “[i]f you’re white, live in the United States, and a distant relative has uploaded their DNA to a public ancestry database, there’s a good chance an internet sleuth can identify you from a DNA sample you left somewhere.”14 A search like that could potentially identify about 60% of white Americans from a DNA sample.15 Yaniv Elrich, a computational geneticist at Columbia University says that, “in a few years, it’s really going to be everyone” that can be identified.16 Forensic genealogy is still a fairly new and rare application gaining notoriety as its use in major crime cases increases. There has been a noticeable increase in the use of forensic genealogy as the popularity of direct-to-consumer genetic testing providers increased.17 While the technology that enabled forensic genealogy is impressive and no one is opposed to catching serial killers, there are still ethical concerns about the use of DNA and forensic genealogy.18 As Sacramento County District Attorney Ann Marie Schubert put it, “[i]t is probably one of the greatest revolutions, at least I would say, in my lifetime as a prosecutor . [b]ut it is a difficult, evolving topic because there are privacy interests at stake in an area that’s unregulated.”19 13 GREYTAK, supra note 8, at 108. 14 JOCELYN KAISER, We will find you: DNA search used to nab Golden State Killer can home in on about 60% of white Americans, SCI. MAG. (Oct. 11, 2018), https://www.sciencemag.org/news/2018/10/we-will-find-you-dna-search- used-nab-golden-state-killer-can-home-about-60-white. 15 Id. 16 Id. (quoting Yaniv Elrich). 17 Paige St. John, DNA genealogical databases are a gold mine for police, but with few rules and little transparency, L.A. TIMES (Nov. 24, 2019), https://www.latimes.com/california/story/2019-11-24/law-enforcement-dna- crime-cases-privacy.
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